Georgia disability rights advocates fear weakening of U.S. accessibility law

There are a few big federal laws that dictate how governments and companies need to accommodate people with disabilities, including Section 504 of the Rehabilitation Act of 1973.

Credit: abbey.cutrer@ajc.com

Credit: abbey.cutrer@ajc.com

The regulation that the DOE is trying to rescind is a Section 504 requirement that says recipients of agency funding need to construct facilities to be readily accessible to and usable by handicapped people. In Georgia, the DOE has helped fund projects such as the Altus at The Quarter neighborhood of smart and energy-efficient townhomes along Marietta Boulevard in northwest Atlanta.

For Rebecca Ramage-Tuttle, the DOE’s proposed rescission of the building accessibility regulation takes her back to her childhood when infrastructure wasn’t accessible. Sidewalks often lacked curb cuts and buses were not required to have ramps.

“As a person with a disability, you know, we only achieved civil rights, really, in the late ’80s and ’90s with the Section 504 and then the Americans with Disabilities Act,” said Ramage-Tuttle, assistant director of the Statewide Independent Living Council of Georgia.

She said the DOE rule change is “a slippery slope” for civil rights.

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Every federal agency has their own version of the regulation, but the DOE is now calling it “unduly burdensome.”

“Given the general prohibition on discriminatory activities and related penalties … DOE finds these additional provisions unnecessary and unduly burdensome. It is DOE’s policy to give private entities flexibility to comply with the law in the manner they deem most efficient. One-size-fits-all rules are rarely the best option. Accordingly, DOE finds good reason to eliminate this regulatory provision,” the agency wrote in May in its proposal to change the regulation. It is set to take effect July 15.

But not all federal officials agree.

“Invariably, if private entities are given ‘flexibility to comply’ with something requiring technical specificity, such as accessibility, there will be mistakes, misunderstandings and oversights that will result in physical barriers that would not have otherwise existed and could foreclose opportunities for employment or enjoyment,” Shawn Kennemer, acting chair of the National Council on Disability, an independent federal agency, said in an email to the AJC.

Credit: AP

Credit: AP

Civil rights advocates said the way the DOE is trying to rescind the requirement is worrisome. The agency is using a process known as a Direct Final Rule, which is typically used to expedite routine and noncontroversial amendments, such as changing a rule’s effective date or updating an industry standard in a regulation, instead of going through a longer multistep review process.

“The usual process for making changes or developing a rule is you put a proposed rule out, you get feedback from the public … you review all the comments, you respond to those and then you have a final rule,” said Alison Barkoff, a professor at George Washington University and a former administrator and assistant secretary for aging at the U.S. Department of Health and Human Services.

“What they have done is something that is incredibly rarely used,” Barkoff said.

As part of the process, if the DOE received significant adverse comments from the public, the agency said it would either withdraw the rule or issue a new final rule which responded to those comments. Public comments were open for 30 days from May to June, but as of Wednesday, weeks after the period closed, the more than 20,000 comments that were submitted have still not been published online, an unusual departure by the agency, advocates say.

The DOE did not respond to multiple requests for comment asking if the agency had received significant adverse comments or why the public comments were not viewable.

However, many civil rights organizations have published their own comments. The American Civil Liberties Union told the DOE the Direct Final Rules used for this rule change and another the DOE is proposing were “neither routine nor noncontroversial.”

“They would expose recipients to competing access standards, creating uncertainty about how accessibility is measured. They would create uncertainty for recipients who receive funding from not just DOE, but other agencies, as to which standards they must comply with,” the ACLU wrote.

Robb, from the Georgia Council on Developmental Disabilities, told the agency the proposal “undermines the fundamental civil rights of people with disabilities. … People with disabilities pay taxes and are active members of every community. They have the right to access and use the federal buildings their tax dollars help fund. This proposal sends the wrong message — that inclusion is expendable.”

Some see the rule change as a potential “trial balloon” for other federal agencies to rescind regulations quickly and without a long public input process, according to Christopher Schuyler, a managing attorney at the New York Lawyers for the Public Interest, a nonprofit civil rights law firm.

“The implications are enormous with this,” Schuyler said. “If this were to move forward, that really makes an incredibly strong statement, and it opens the door for other protections to be removed and peeled back.”

The accessibility rule is not the only civil rights regulation the DOE is attempting to amend using this same process, according to Liz King, a senior program director at the Leadership Conference on Civil and Human Rights. The agency proposed rescinding some nondiscrimination regulations under the Civil Rights Act of 1964 and another proposes rescinding some age discrimination provisions.

“All of these are a terrible idea, and the fact that they are all together is a reminder that rarely do opponents of civil rights and equal opportunity come after only one community or only one experience of discrimination,” King said. “This is a holistic attack on essentially everyone in this country in the way that we all live, work and learn.”